6396_eth_persp_statman_07

The Right to ParenthoodAn Argument for a Narrow Interpretation1
ABSTRACTThe paper argues for two kinds of limitations on the right to parenthood. First, it claims that the right to parenthooddoes not entail a right to have as many children as one desires. This conclusion follows from the standard justificationsfor the right to parenthood, none of which establishes the need to grant special protection to having as many childrenas one desires. Second, with respect to the right to receive assistance from the state in IVF, it is suggested that the stateshould also be allowed to take non-medical considerations into account in determining whether or not an applicant isentitled to this service, particularly in cases where the applicant seems to lack mothering ability.
KEYWORDSParenthood; Negative and Positive Rights; Assisted Reproduction
suffering from serious psychological and socialdifficulties. She was not working and lived on
Let me begin with two true stories. The first is
welfare benefits, even needing to reside in an
that of David Oakley from Wisconsin, a story
apartment rented by the department for social ser-
quite well known by now, one which has aroused
vices. She had no social connections and had dif-
wide legal and public discussion in the US.2 Oak-
ficulties in communication, often manifested in
ley was convicted of deliberately failing to pay
verbal aggression. Apparently A's family was also
child support for his nine children. He was placed
problematic, with most of its members suffering
on probation, one of the conditions being that he
various forms of retardation, mental illnesses and
not father any more children for the term of his
behavioural difficulties. The psycho-social report
probation, unless he could prove that he was capa-
written at the end of 2000 concluded that, though
ble of supporting those he had already sired and
her parental capability was low, it was impossible
any additional children he wanted to bring into
to determine unequivocally that A could not
the world. The ruling was upheld by the Wiscon-
mother a child. The report added that, though she
sin Supreme Court in August 2001 and opened
probably lacked the resources and the ability to
(or re-opened) a debate about the nature and lim-
raise a child by herself, she might be able to do
its of the right to procreate.
so with "massive support" and "close surveil-
The second story is one I heard from a former
lance". Following this assessment, the IVF centre
student of mine, Rebecca, who works as a psy-
called a meeting with all those involved in the
chologist in a big IVF centre in Israel. Ms. A, a
case. They decided to refuse treatment to Ms. A.
single woman in her thirties, turned to the centre
In his report, the director of the centre added a
asking to receive IVF treatment. She was referred
letter, commenting in conclusion: "I'm sorry but
to Rebecca who saw immediately that A was
the woman ought not to be treated. I hope that, in
AUTHOR INFORMATION: Daniel Statman, PhD. Dept. of Philosophy, University of Haifa, Haifa 31905 (Israel). E-mail:
Ethical Perspectives 10 (2003)3-4, p. 224
spite of all the pain, this decision will prevent fur-
would be used to fertilize many women anywhere
ther confusion and misery." To date, Ms. A has not
in the world, he wouldn't have felt that his desire
received IVF treatment from any other centre in
for parenthood had been respected, while, simi-
Israel and most probably will never bear a child.
larly, Ms. A would not have accepted a solution
In both cases, that of Mr. Oakley and that of
according to which her ova would be donated to
Ms. A, the question to be asked is whether the
infertile women in some remote corner of the
right to parenthood was violated. The purpose of
world to help them produce children that are
my paper is to offer a framework for thought on
genetically related to her. The interest we have is
this question. In the first part, I look at it through
not in procreation itself, namely, in merely repli-
the prism of negative rights, i.e. the right to non-
cating our genes, but in rearing children that are
interference in the satisfaction of an interest, while,
genetically connected to us, or, at least, in rearing
in the second, I utilize the prism of positive rights,
children with whom we can enjoy a significant
i.e. the right to be granted assistance in the satis-
relationship. This interest in having or rearing chil-
faction of interests.
dren can be satisfied even when the genetic con-nection is absent, e.g. when a woman receives ovafrom a donor to be fertilized with sperm from her
1. Interfering in the Right to Parenthood
husband or partner, or, of course, when a woman
When claims concerning rights are invoked, two
or a couple adopt a child genetically unrelated to
issues must be settled: first, whether the person
either of them. For most human beings throughout
who claims to be the holder of the right does,
history, the first choice would be to have children
indeed, have the relevant right, and second,
genetically related to them and, only if this were
whether the right is strong enough to compete with
impossible, would they settle for forms of adop-
conflicting considerations. Admittedly, in cases
tion. Bonnie Steinbock is right to conclude that
where the supposed right is easily overridden by
individuals who lack the capacity to be rearing
other considerations, it is hard to decide whether
parents, such as severely retarded people, do not
the best conceptualization of the case is in terms
have an interest in reproducing, and, as a necessary
of a right being overridden, or in terms of a right
corollary, do not have a right to reproduce either.5
which was non-existent in the first place. I am not
Thus, in what follows, when I talk about the right
convinced that the distinction is a significant one,
to reproduce or procreate, I'll always have in mind
but, in any case, I believe it can be ignored for the
the right to parenthood, a term which captures the
purpose of the present discussion.
interest under discussion more successfully.
Did Mr. Oakley, then, have a right to procreate
But why should the interest to parenthood be
that was violated by the court? I shall assume, fol-
entitled to special protection in the form of a right?
lowing Raz3 and others, that rights are interests that
American jurisprudence has emphasized the con-
deserve special protection or enhancement, inter-
nection between parenthood and privacy, implying
ests that impose various duties on others. I shall
that protection of the former is anchored in the
also assume that the notion of right is essentially
importance of the latter. But while the importance
non-utilitarian, that is to say, the very fact that vio-
of privacy can explain why the state ought not to
lating the right would cause greater utility than not
interfere in procreation, it offers no explanation as
doing so is insufficient to justify the violation.
to why the state might be required to help people
As noted by numerous writers,4 the notion of a
procreate, as in the case of Ms. A. Refusing to
right to procreate is a bit misleading, because we
offer such help might be morally wrong on other
don't seem to have an interest in procreation per
grounds, but it is hard to see how such refusal
se. If Mr. Oakley had been allowed to donate
would violate an individual's privacy. Hence,
sperm and had been promised that his sperm
though privacy might play some role in a theory
Ethical Perspectives 10 (2003)3-4, p. 225
of parenthood, it can't be the whole story.6 What
achieve that goal. Furthermore, if, as argued in the
needs to be added is the deep value attached to
Symposium, this immortality has to do with the
parenthood by human beings, and its crucial role
rearing and education of offspring10, then, surely,
in their well-being. I will not list here all relevant
there's a limit to the number of children one can
reasons for this value. Among other things, they
rear and educate effectively. Similarly, if a deep
have to do with the desire to achieve a kind of
human need to build a ‘nest' exists, a need to cre-
immortality by continuing to live through descen-
ate a place where one will always have a sense of
dants, the desire to live vicariously through one's
safety, of belonging, and of meaningfulness, then,
children, getting a second chance, as it were, the
again, the nest need not include more than two or
desire for the deep and enduring intimate relations
three children to fulfill its role. Finally, if having
that one hopes to achieve with one's offspring, the
children is essential to the bonding together of two
longing for a home, a nest, a secure place with a
souls and to the founding of a family, there's no
close network of relationships in which one
need for ten children to achieve these goals.
belongs, and, in addition, the interest of couples
To be sure, people's perception of the size of a
to found a family.7
‘normal' family and their idea of the number of chil-
Now if these are the kind of considerations that
dren a respectable member of the community
underlie the right to parenthood, they have crucial
should have are significantly influenced by the par-
implications regarding the nature of this right. I
ticular culture. For some, the nest must include at
will mention one in brief, while elaborating at
least five children. For others, two would be
more length on another. The first implication, then,
enough. But if there is a grain of truth in the idea
is that the right to be a parent does not include, or
of a universal right for parenthood, then – as with
entail, the right not to be one.8 Some of the judges
all human rights – there must be some core interest
in the Israeli case of Nachmani v. Nachmani
in parenthood shared by all human beings, regard-
thought otherwise and argued that a woman's right
less of the distinctive features of their culture. And
to be a mother by having her fertilized eggs
if I'm right in my argument, then, in normal cir-
planted in a surrogate mother's womb is equivalent
cumstances, the satisfaction of this fundamental
to the right of her husband not to be a father
interest does not require more than two or three
against his will. In my view, this is a mistake.
children. Even the Biblical matriarchs were satis-
Maybe Mr. Nachmani did have a right to prevent
fied with small families. Sarah had one child.
his wife from continuing the artificial process of
Rebecca had twins. When Rachel's moving plea to
procreation against his will, but this right was not
her husband "Give me children else I die" was
part of, nor entailed by, the right to parenthood
answered, one child was enough for her to state that
because the reasons explaining the importance of
"God had taken away my reproach", while the most
parenthood for human beings are not those estab-
she aspired to was one more child. "And she called
lishing the importance of not being a parent.
his name Joseph for she said God will add to me
The second implication I'd like to draw from
another son" (Genesis 30, 22-24). Thus, in the eyes
the above kind of considerations supporting the
of the Biblical narrator, one or two children are
right to parenthood is that, contrary to what Justice
enough to satisfy the interest in parenthood.
Bradley stated in the Oakley case, it is not a right
It is interesting to note in this context that the
to have "as many children as one desires".9 In
Biblical injunction to multiply and replenish the
terms of any of the considerations just mentioned,
earth is not interpreted in the Talmudic tradition
two or three children should definitely suffice. If,
as an obligation to reproduce as many children as
for instance, we want children so that in a real or
possible, though such an interpretation would be a
a symbolic way, we continue to exist in the world
natural reading of the above order, but rather as
after we die, then we don't need ten children to
an obligation to give birth to one boy and one girl.Ethical Perspectives 10 (2003)3-4, p. 226
If one assumes that the dictates of religion often
procreate as a right to have as many children as
manifest deep human concerns, then we might see
one wishes, an argument often made by environ-
here another confirmation of the idea that to sat-
mentalists. The argument is based on the assumed
isfy interest in procreation, no more than two or
negative relation between population growth and
three children are needed.
its impact on the environment. The simple idea is
As far as I know, my suggestion to limit the
that the more children one has, the more one con-
right to parenthood with respect to the number of
tributes (a) to the depletion of the world's
offspring goes against most, if not all, accepted
resources — food, water etc. — and (b) to envi-
wisdom and legal conventions in this area, accord-
ronmental damage, such as pollution, global
ing to which the right under discussion entails the
warming, etc. The logic of the argument seems
right to determine the size of one's family. Of
undeniable: If, on average, each individual has a
course I do not deny that people often have a deep
negative impact, i, on the environment, then eight
desire to have big families and, moreover, that this
individuals have an impact of i times eight. A cou-
desire might at times enjoy the protection of a
ple that bears eight children thus makes four times
right – but it will not be the right to parenthood.
a worse negative impact on the environment than
Maybe the right to culture, for example, could jus-
does a couple with only two. Hence, the right to
tify special protection of the procreation norms
parenthood must not be interpreted as a right to
which are accepted in some religious or ethnic
bear as many children as one likes, but rather —
minority groups. Or maybe freedom of religion
as suggested above — as a right to bear two or
could justify a right to have as many children as a
three children. Yet this argument overlooks the
couple wants, in cases where the dictates of some
complexities of the social reality. The fact is that
religion call for big families or forbids the use of
families with eight children are (a) typically poorer
contraceptives.11 The point is that, in the absence
than families with only two children, hence they
of these special rights, the right to parenthood does
consume less, and (b) they contribute less to envi-
not imply a right to bear ten or more children.
ronmental damage. Yaakov Garb examined this
Returning now to Mr. Oakley. If my under-
issue in detail regarding the situation in Israel,
standing of the right to parenthood is correct, the
where the fertility level of two social groups,
conclusion is that, at the time of his appeal, he no
Arab-Muslims and Jewish Ultra-Orthodox, is
longer had such a right. Nine children are far more
much higher than that of other groups. Garb has
than needed to satisfy the human craving for off-
shown that the consumption of water, for instance,
spring, hence Oakley's desire for more children
is, on average, about two times smaller in Muslim
could not enjoy the status of a right. Therefore, it
and Ultra-Orthodox villages and neighbourhoods
could be overridden by considerations concerning
than in affluent secular communities, while the
the welfare of the actual or potential children, or
number of cars is three times lower.13 Thus, con-
by utilitarian considerations in general. Since the
trary to what the argument under discussion sug-
court was convinced that, if Oakley fathered more
gests, a right to have as many children as one
children, he would fail to provide for their needs,
wants — which might result in the production of
and would continue to fail to fulfill his responsi-
more children —might, in certain social condi-
bilities to his existing family, the court was right
tions, be advantageous, rather than detrimental to
in trying to limit his right to father more children.
the environment. Furthermore, from the point of
Though the legal picture was more complicated,12
view of environmentalism, not only is bearing
at least from a moral point of view, Oakley's claim
many children problematic, but so is bearing any
should have been rejected outright.
child. As Thomas Young nicely shows, if over-
At this point, I would like to refer to a differ-
consumption is morally wrong in face of an over-
ent argument against understanding the right to
crowded world, the same should apply to
Ethical Perspectives 10 (2003)3-4, p. 227
procreation, and if the latter is all right, so is the
importance of speech, nor those underlying the
former.14 Hence, environmentalism does not lend
importance of parenthood, entail the importance
clear support to my suggestion to respect the right
of speech or procreation at a particular point of
to parenthood only for two or three children.
time, rather than at a reasonably later one.
Needless to say, the conclusion above regard-
Finally, let me repeat the obvious point that
ing Mr. Oakley would apply also to women in sim-
while denying some interest the status of a right
ilar circumstances. Consider, for instance, the cur-
weakens its normative power, it, of course, does
rent debate in the US about the proposal to offer
not eliminate it. As Dworkin emphasizes, with
women additional welfare bonuses on the condi-
rights, mere utilitarian considerations are insuffi-
tion that they agree to temporary sterilization
cient to justify intervention in the relevant domain,
(using Norplant or Depo-Provera) while they are
be it speech, movement, association, or any other
on welfare. Following my previous argument, if
protected domain.17 This does not mean that inter-
such women have already produced two or three
vention needs no justification whatsoever, that the
children, they can't say that their right to parent-
state can disregard the individual interests of its
hood is violated by such a proposal, though it does
members. What it does mean is that the onus of
put some pressure on them not to produce more
justification is lighter. Regarding the case of Oak-
offspring while on welfare.15
ley with which we began our discussion, it means
The temporariness of the limitations on the
that the public interest in taking care of children
right to parenthood might also be significant.
and of ensuring that no more children will be born
One's right to bear children is not violated if one
who will become a burden on society overrides the
is forced to postpone one's procreative plans by a
individual interest of Oakley to father more chil-
week, a month, or even by a year or so. Though it
dren. Similarly, in the case of women on welfare,
is impossible to draw an exact line here, surely a
the public interest in not having children in soci-
reasonable delay might be consistent with a true
ety for whom their parents cannot provide justi-
concern for one's interest in parenthood. This is
fies making some bonuses conditional on tempo-
true of other rights too. One's freedom of speech
rary sterilization, especially if the women already
is violated if one is prevented from publishing a
have children and, if not, assuming that the delay
book expressing one's opinions. It is not violated
would be of no consequence in this regard.
if the publication of the book is delayed by a year
That in normal circumstances the state must not
or so (assuming that things are more or less equal
prevent anybody from procreating applies to so-
in the relevant aspects). Similarly, as the Supreme
called ‘natural' procreation, i.e. through sexual
Court of Israel ruled some twenty years ago,
intercourse, as well as to so-called ‘artificial' pro-
rescheduling a TV programme from Friday
creation, via artificial insemination, or in vitro fer-
evening to Saturday evening does not violate the
tilization (IVF). There seems to be no relevant dif-
producers' right of expression, even if the rating
ference between natural and artificial procreation
would decrease as a result.16
that could explain why the former should enjoy a
I indicated earlier that often it makes no real
stronger protection than the other18.
difference whether we say that some interest falls
Or is there? Some feminists have argued that
short of constituting a right, or whether we say it
the availability of IVF often has negative effects
constitutes a weak one, that is, an interest easily
on women, who suffer from what Phyllis Tobin
overridden by conflicting considerations. With
called "the addiction to high tech promise".19 Dur-
respect, however, to disturbances of a temporary
ing the often painful and frustrating process of
nature, like the ones just listed, it seems truly arti-
IVF, women are under the illusion that they can
ficial to conceptualize them in terms of a threat to
make it happen, which is combined with the illu-
rights. Neither the justifications underlying the
sion that they are in control and can stop any time
Ethical Perspectives 10 (2003)3-4, p. 228
they wish. The need to maintain these illusions
fertility treatments would confirm and perpetuate
"can result in a woman becoming increasingly
the view that a woman who fails to procreate is
compulsive and obsessive in her attempt to con-
deeply deficient, a view with harmful psycholog-
ceive… she becomes crisis oriented… she lives
ical and social consequences. In the present dis-
only for herself, for her next treatment, and
cussion, I shall skip this question and focus on a
between treatments can feel nothing but the empti-
different one. Given that in some countries, such
ness within her".20 From the point of view of the
as Israel, the public health system does offer IVF
welfare of the women involved, it would be better
as one of its medical services, the question I'd like
for many of them to accept their infertility and
to address is who should be entitled to it. This will
quit, so to say, the race, rather than get involved in
be the topic of the next section.
this Via Dolorosa with its high psychologicalcost.21 The availability of IVF makes it hard for
2. Assistance in Procreation
women to appreciate the option of seeing them-selves as child-free rather than as childless.22 But
State-granted assistance to enable parenthood
Tobin does not suggest, nor do most feminists, that
raises two questions:
the right to procreate via IVF — for those womenwho so wish — should be entitled to less protec-
(a) Is it permissible for the state ever to refuse to
tion vis-à-vis the state than the right to procreate
grant IVF treatment to women on the grounds that
through intercourse. Preventing access to IVF
they are incapable of being reasonable mothers, or
would be an extreme case of maternalism23 and
do such women, nevertheless, have a right to par-
would be hard to justify.24
enthood which the state must respect?
Let me sum up the main conclusions so far.
(b) Given that state resources are limited, namely,
First, people have a right to procreate which is
that it cannot afford to grant as many IVF treatments
anchored in fundamental human concerns. Second,
as its citizens might request, how should it distrib-
the right exists whether the procreation is ‘natural'
ute this resource?
or ‘artificial'. Third, the limits of the right — likethose of all rights — are determined by the limits
Question (a) is about rights. It asks who has, and,
of the above concerns, which means, among other
particularly, who does not have a right to parent-
things, that one does not have a right to have as
hood, in the sense of a positive right to assistance
many children as one wants. Fourth, when the
from society to become a parent. Question (b) is
interest in parenthood does not enjoy the status of
about distribution or about distributive justice. It
a right, it can be overridden by considerations con-
asks how parenthood should be allocated, so to
cerning the welfare of the potential children, as
speak, given that society's resources are limited.
well as by considerations of fairness suggesting
The question arises with regard to IVF treatments,
that one ought not to produce children, the burden
and even more so with regard to ova for transplant.
of whom will fall upon society.
In the actual world, where resources are and
That one has a right to non-interference in the
will probably continue to be limited, questions
realm of procreation does not, of course, imply
about the right to parenthood can be formulated as
that one has a right to positive assistance by the
questions about priority in allocation, so that a
state in cases of infertility, i.e. that the state has an
woman seen as unfit to be a mother would get a
obligation to provide IVF and other treatments to
low ranking in the queue, which in effect would
those in need through the public health system and
mean that she'd never reach its top. Nevertheless,
national insurance. Here, the feminist concerns
I think it is worthwhile, both theoretically and
indicated above are powerful, especially the fear
practically, to discuss question (a) separately, as a
that public finance for IVF and other expensive
question about rights. If the answer to it is in the
Ethical Perspectives 10 (2003)3-4, p. 229
affirmative, then even if our resources become less
abused by a parent with very minimal parental
limited, it might still be permissible to refuse
capabilities. For the present purpose, I believe we
requests for parenthood. The rest of the paper will
can bracket the question of whether to conceptu-
be devoted to question (a), and issues of distribu-
alize the concern under discussion as a personal
tion will have to await some other occasion.
concern for the child,26 which will get us into well-
The question about limiting the positive right to
known problems of non-identity, or as an imper-
parenthood takes us back to the case of Ms. A. The
sonal concern for a world with less suffering. On
IVF centre to which Ms. A turned had enough
either view, I can't imagine that anybody would
resources to provide her with the required treat-
claim that there's a moral duty to help a woman
ment. No doubt she would have been a problem-
conceive a child expected to suffer in the ways just
atic patient, in terms of complying with the
mentioned. To be sure, psychological and educa-
instructions, and in terms of human relationships,
tional deprivation is different from physical pain
but with a lot of patience and assistance by the
and limitation, but when the former is grave
staff she could have still borne a child. Given the
enough, I see no reason why the argument should
pessimistic assessments about the quality of her
potential motherhood, was it morally acceptable
The second argument for limiting the positive
to refuse to help her have a child? Let me work my
right to parenthood is based on the idea that soci-
way to answering this question through another
ety has a right to refuse to grant parenthood when
case reported to me by the head of that IVF cen-
the burden of taking care of the potential children
tre. In this case, a woman had a child through IVF,
would almost certainly fall on its own shoulders.
but was incapable of taking care of it and gave it
As you will recall, that was exactly the case with
up for adoption two months after delivery. It seems
Ms. A, who was assumed not to be able to bring
safe to say that, retroactively, the decision to help
up a child without massive and ongoing help by
her conceive and bear a child was a mistake. Had
the social services. In such cases, the individual is
we known when this woman turned to the IVF
asking for more than help in procreating, but is
centre that she would not be able to rear a child,
also requesting significant help in rearing the child.
we would have had no duty to help her, in fact we
I think it is reasonable for society to refuse at least
might have had a duty not to help her have a child.
some of these requests. There's something unfair
If this last assumption is granted, then we have
about a person asking to bring a child into the
shown that, in principle, it is permissible for a pub-
world while knowing in advance that he or she
lic IVF centre to refuse to provide IVF treatment
cannot care for it, thus planning in advance to take
on non-medical grounds. It all depends on the
advantage of the good will of society.27
gravity of the parental incapacity, that is to say,
The natural objection to these arguments is that
under a certain threshold women can be denied
they apply not only to IVF, or to artificial procre-
state-funded IVF treatment.25 And this seems to
ation in general, but to natural parenthood too. If
lend support to the decision, mentioned at the out-
the concern for the child's quality of life is legiti-
set, to turn down Ms. A's request for IVF.
mate, and if the argument from fairness is sound,
Such limits on the positive right to parenthood
then why not limit the right of potential parents to
are based on two arguments. The first is based on
have children in the natural way too? Since such
concern for the potential child. Just as it would be
limitations would be unthinkable, continues the
morally acceptable to refuse to help a woman con-
argument, we ought not to use them in procreation
ceive a child expected to suffer from a terribly
through high-tech methods either. I myself argued
painful and paralyzing disease, so it would be
earlier that insofar as violating the right to parent-
morally acceptable to refuse to help in the con-
hood is concerned, it makes no difference whether
ception of a child expected to be neglected or
access to parenthood is via sexual intercourse, or
Ethical Perspectives 10 (2003)3-4, p. 230
via IVF. What does seem to make a difference,
neither procreate naturally, nor pay for IVF, can
however, is whether the individual has an ability to
demand that society provide the help they need. To
conceive by herself, or whether she needs assis-
be sure, some philosophers would respond by say-
tance from society. In the latter case, it seems that
ing that this initial inequality between those who
society is entitled to a say about how its money is
have X and those who don't must be reversed to
to be used and about the burdens it agrees to take
achieve a just society, because all differences based
upon itself.
on brute luck must be eliminated. All I can say
But doesn't the above suggestion create unjust
about this challenge in the present context is that
inequality between fertile and infertile women?
making claims for IVF, claims which depend on a
While fertile women would be able to have as
specific view about equality, namely egalitarian-
many children as they wish, deprived and ill as the
ism, seems to weaken them, not strengthen them,
children might be, supported as they might be by
because they would then be accepted only by those
society, infertile women would be denied access
who accept the egalitarian view.
to parenthood. This seems unfair, because the
My second response to the assumed inequality
method of conception looks morally irrelevant,
between fertile and infertile women is that, in prin-
hence, the same limitations based on concern for
ciple, we might have been happy to use the crite-
the child's physical and psychological welfare and
ria listed above to limit natural parenthood too, but
on society's right to refuse to take upon itself in
such use would raise such grave practical difficul-
advance the burden of bringing up the children of
ties as to make the proposal unfeasible. Here I am
a bad parent should apply equally to natural par-
following the argument developed by David
ents too — or should apply to none.
Archard about whether individuals should be
I'd like to offer two answers to this question.
given a licence to be parents. "Why," he asks,
First, the distinction between a right to non-inter-
"shouldn't the state, or society as a whole, decide
ference in X and a right to be granted X is not easy
whether a child should be born and, if it is, to
to justify. The difficulties in doing so mirror the
which parents it should be allocated?"28 He then
familiar difficulties in justifying the distinctions
lists a few good reasons why the state should make
between doing and allowing, killing and letting die,
such decisions, reasons of the kind mentioned
action and inaction. My point is that if the former
above when we discussed criteria for receiving or
distinction is accepted — and I believe most of us
non-receiving IVF. Nevertheless, in the end he
do accept it — it necessarily entails a difference
rejects this proposal, on the basis of four practical
between those who already have X and those who
objections which I shall not rehearse here.29 On
do not. The right of movement protects the human
Archard's view, these practical considerations
interest in free movement, but the protection ben-
explain the difference between the rules govern-
efits only those who have the means to avail them-
ing natural parenthood and those governing adop-
selves of this right. Those who cannot travel far,
tion. While no individual needs a licence to be a
because they are too poor to afford transport, can-
natural parent, one does need to satisfy some cri-
not require, under the right to freedom of move-
teria in order to qualify as an adoptive parent. On
ment, that the state give them a car or cover their
Archard's view, we would license natural parents
travel expenses. Similarly in the present context:
too if we could do it practically, but we cannot.
those women who are lucky enough to be fertile,
With adoption we can, therefore we should.
or to have enough money for IVF, enjoy the pro-
My suggestion, then, is that, in the relevant
tection of the right to parenthood, which means that
respects, parenthood through IVF is closer to
under normal conditions their procreative plans
parenthood through adoption than it is to natural
should not suffer interference. Yet, this right does
parenthood. Since we can screen candidates for
not automatically entail that women who can
IVF in a way that would be close to impossible
Ethical Perspectives 10 (2003)3-4, p. 231
with natural parents, and since we have control
that the actual policy of IVF centres is more open
over the ability of such candidates to procreate
to non-medical criteria than they are willing to
which we don't have with natural parents, we are
admit. With respect to organ allocation, Volker
entitled to refuse to grant IVF treatment in some
Schmidt has found that "there is a tendency to
cases, just as we are entitled to reject candidacy
rationalize non-medical criteria in medical
for adoption in cases where the candidates seem
terms",33 and I guess that a similar phenomenon
exists with IVF too. From my inside information,
More than twenty years ago, Hugh Lafollette
I have the feeling that one way of evading giving
argued the provocative thesis that parents ought to
IVF to women who formally qualify, but are per-
be licensed.30 The rationale for his proposal was
ceived as unfit by the staff, is to delay the treat-
simple. The state has a duty to regulate all poten-
ment with all kinds of excuses until the women
tially harmful activities; parenting is an activity
are too old according to existing regulations.
potentially very harmful to children (abuse,
Needless to say, limitations on the right to par-
neglect); therefore, parenthood, too, must be reg-
enthood are not to be imposed lightly, even if they
ulated. For many years, this proposal hasn't been
are imposed through weak forms of coercion, such
taken seriously, but, as noted by Carl Hedman,
as denying bonuses, or conditioning probation.
"things seem to be changing," and he refers to
Such limitations were often motivated by forms of
what he sees as relatively wide support for the idea
hatred and racism, and were part of despicable
of licensing parents as a way of reducing child
political agendas. We should never underestimate
abuse.31 The conditions imposed on Oakley, as
these dangers. Yet neither should we overlook the
well as those imposed on mothers on welfare,
interests of children who suffer as a result of irre-
seem to be consistent with this development. When
sponsible and unsuitable parents, and the interest
I look back at the line of argument, it seems that
of society not to bear the burden of children whose
my paper too expresses this shift in opinion about
parents cannot care for them.
the status of the right to parenthood. I have no
Finally, and to avoid any possible misunder-
wish to deny the depth of the human interest in
standing, let me emphasize that all the suggestions
parenthood, nor to reject its status as a right, i.e.
I put forward for limiting the right to parenthood
the need to grant it special protection. Yet, the
— in terms of number, timing and assistance from
boundaries of this right, as with other rights,
the state — apply only to what David Heyd has
depend on the rationales establishing it, hence, as
called potential children.34 The rights of actual
I showed at length in the first part of the paper,
children vis-à-vis their parents and vis-à-vis the
one does not have a right to have as many children
state are a different story altogether. If Mr. Oak-
as one desires, whenever one so desires.
ley fathers another child while on probation and
Moreover, the interest in parenthood must be
if Ms. A manages to conceive a child through
balanced against the interests of the potential child
some IVF centre, these children will, of course,
and those of society in general. While monitoring
deserve full rights as human beings and as mem-
parenthood is very problematic in natural parents,
bers of society. This paper dealt with a different
it is more practical in adoption and in high-tech
issue, that of whether Oakley and Ms. A have a
parenthood, and, in these cases, I find it legiti-
right to bring children into the world in their spe-
mate.32 This latter conclusion is less provocative
cial circumstances, by claiming the right to par-
than it sounds. With adoption, it has long been
enthood. And, to this question, I answer in the
accepted that candidates must be monitored
negative: neither Mr. Oakley, nor Ms. A, have a
according to clear non-medical criteria, such as
right to parenthood which was violated by their
age, education, etc. But with IVF too, I suspect
respective states.Ethical Perspectives 10 (2003)3-4, p. 232
1 I wish to thank the participants of the Bremen workshop on reproductive rights for helpful comments on an earlier
draft. I am also grateful to Ariel Zisman for his invaluable research assistance.
2 See State v. Oakley, 629 N.W.2d (Wis. 2001) at 219.3 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), 180-186.4 See e.g. Bonnie Steinbock, "Reproductive Rights and Responsibilities," Hastings Center Report, 24/3 (1994): 15-16.5 Ibid., p.15. See John Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton:
Princeton University Press, 1994), 30.
6 A similar argument should be made against the claim that "the demand for reproductive freedom seems to derive
ultimately from the idea of having control over one's body". Gillian Douglas, Law, Fertility and Reproduction (London:Sweet & Maxwell, 1991), 16.
7 On this last consideration, see Athena Liu, Artificial Reproduction and Reproductive Rights (Aldershot: Ashgate,
1991), 41, who argues that the claim of the wife or the husband to exercise an individual right to reproduce might reflectadditionally, and as importantly, the interest of the couple in founding a family. I should add that the relatively new notionof ‘single-parent families' makes it hard to acknowledge this interest, because if a family can include merely a womanand her child, then the founding of a family is a necessary result of any act of procreation and cannot constitute a sep-arate consideration.
8 The thought that it does is often motivated by a general misconception about rights, see Daphna Barak-Erez and Ron
Shapira, "The Delusion of Symmetric Rights," Oxford Journal of Legal Studies 19 (1999): 297.
9 Justice Bradley in State v. Oakley, supra note 2, at 219.10 Symposium, 208-209.11 The right to culture and freedom of religion are intimately connected, as the former is a main rationale of the lat-
ter. See e.g. Gideon Sapir "Religion and State: A Fresh Theoretical Start" Notre Dame Law Rev. 75 (1999): 579.
12 For a detailed argument in favour of the court's decision, see William Betesh, "Has the State Gone Too far? Test-
ing the Constitutionality of Probation Conditions that limit a Probationer's Right to Procreate," Seton Hall Legis. J. 26(2002): 459-497. For the opposite view, see David Corneal, "Limiting the Right to Procreate: State v. Oakley and theNeed for Strict Scrutiny of Probation Conditions," Seton Hall Legis. J. 33 (2003) 447-478.
13 See Yaakov Garb, "Population Dynamics and Sustainability in the Israeli Context," in Paths to Sustainability: Shadowreport to the Government of Israel's Assessment of Progress in Implementing Agenda 21Presented at the World Summitfor Sustainable Development (Johannesburg, 2002).
14 Thomas Young, "Overconsumption and Procreation: Are they Morally equivalent?" Journal of Applied Philosophy
18 (2001): 183-192.
15 For a defence of the above welfare condition, see Kimberly A. Smith, "Conceivable Sterilization: A Constitutional
Analysis of a Norplant/Depo-Provera Welfare Condition," Indiana L.J. 77 (2002): 389-418.
16 2437/92 Yigal Lev v. Minister of Education P.D. 46(3): 756.17 Ronald Dworkin, Taking Rights Seriously, (London: Duckworth, 1977), ch. 12 ("What Rights Do We Have?")18 Cf. Robertson (supra note 4), 32: "If the moral right to reproduce presumptively protects coital reproduction, then
it should protect noncoital reproduction as well."
19 Phyllis Tobin, Motherhood Optional: A Psychological Journey (Northvale, N.J.: Jason Aronson, 1998), 109.20 Ibid., 110.21 On the psychological costs of IVF see also Linda S. Williams, "No Relief Until the End: The Physical and Emo-
tional Costs of In Vitro Fertilization," in The Future of Human Reproduction, ed. Christine Overall (Toronto: Women'sPress, 1989), 120-138; Christine Overall, "Access to IVF: Costs, Care and Consent," Dialogue XXX (1991): 383-397.
22 Ibid., 117-118.23 Overall, 392.24 See Mary Anne Warren, "IVF and Women's Interests: An Analysis of Feminist Concerns," Bioethics 2 (1988): 33-57,
section II, who objects to denying IVF, for paternalistic reasons, to all women. After considering the various feminist objec-tions to IVF and to other new reproductive technologies, she concludes that "the costs and risks of IVT treatment are sub-stantial, but they are not known to be so great as to clearly outweigh the potential benefits, in every case" (p. 53).Ethical Perspectives 10 (2003)3-4, p. 233
25 Torbjörn Tännsjö puts forward a powerful argument against "meddling with our reproductive decisions" (p. 249).
In his view, "the use of techniques for assisted reproduction should not be regulated by political authorities (nor by doctors)" (p. 247). Torbjörn Tännsjö, "Compulsory Sterilization in Sweden," Bioethics 12 (1998): 236-249. I con-cur – insofar as this use is not funded by the state.
26 See, e.g., Torbjörn Tännsjö, "Who Are the Beneficiaries?" Bioethics 6 (1992): 288-296, 289, who argues that if the
life a child has to live is clearly worse than no life at all, it would be wrong to conceive it. By doing so, the would-beparents "would wrong it."
27 See David Heyd, Genethics: Moral Issues in the Creation of People (Berkeley: University of California Press, 1992),
111, who argues that "it is wrong for a young girl to decide on motherhood when she knows that she will not be ableto fulfill her duties as a mother — not a wrong to the child, but to her own moral integrity."
28 David Archard, Children: Rights and Childhood (London: Routledge, 1993), 139.29 Ibid., 142-146.30 Hugh Lafollette, "Licensing Parents," Philosophy & Public Affairs 9 (1980): 182-197.31 See Carl Hedman, "Three Approaches to the Problem of Child Abuse and Neglect," Journal of Social Philosophy
31 (2000), 268-293, and his references on p. 283, notes 3-7 to the discussion around Jack Westman, "Licensing Parents:Can We Prevent Child Abuse and Neglect?" The Milwaukee Journal, January 22, 1995.
32 Needless to say, such monitoring must not be arbitrary. A good example of an unjustified limitation on IVF is an
age limitation, i.e. denying access to IVF to ‘old', post-menopausal women. On why such denial is unjustified, see Jen-nifer Parks, "On the Use of IVF by Post-Menopausal Women," Hypatia 14 (1999): 77-96, and Guido Pennings, "Post-Menopausal Women and the Right of Access to Oocyte Donation," Journal of Applied Philosophy 18 (2001): 171-181.Private IVF centres typically have no such age limit, see e.g. the conditions listed in www.givf.com/ivf.cfm, where itsays explicitly that "there is no age limit for couples who may be considered for IVF in our institute."
33 Volker H. Schmidt, "Selection of Recipients for Donor Organs in Transplant Medicine," Journal of Medicine andPhilosophy 23 (1998): 50-74.
34 See Heyd, Genethics, Introduction.
Archard, D. Children: Rights and Childhood. London: Routledge, 1993.Barak-Erez, D. and R. Schapira. "The Delusion of Symmetric Rights." Oxford Journal of Legal Studies 19 (1999): 297-
Betesh, W. "Has the State Gone Too far? Testing the Constitutionality of Probation Conditions that Limit a Probationer's
Right to Procreate." Seton Hall Legis. J. 26 (2002): 459-497.
Corneal, D. "Limiting the Right to Procreate: State v. Oakley and the Need for Strict Scrutiny of Probation Conditions."
Seton Hall Legis. J. 33 (2003): 447-478.
Douglas, G. Law, Fertility and Reproduction. London: Sweet & Maxwell, 1991.Garb, Y. "Population Dynamics and Sustainability in the Israeli Context." In Paths to Sustainability: Shadow report tothe Government of Israel's Assessment of Progress in Implementing Agenda 21Presented at the World Summit for Sus-tainable Development. Johannesburg, 2002.
Hedman, C. "Three Approaches to the Problem of Child Abuse and Neglect." Journal of Social Philosophy 31 (2000):
Heyd, D. Genethics: Moral Issues in the Creation of People. Berkeley: University of California Press, 1992Lafollette, H. "Licensing Parents." Philosophy & Public Affairs 9 (1980): 182-197.Liu, A. Artificial Reproduction and Reproductive Rights. Aldershot: Ashgate, 1991.Overall, C. "Access to IVF: Costs, Care and Consent." Dialogue XXX (1991): 383-397.Parks, J. "On the Use of IVF by Post-Menopausal Women." Hypatia 14 (1999): 77-96.Pennings, G. "Post-Menopausal Women and the Right of Access to Oocyte Donation." Journal of Applied Philosophy
18 (2001): 171-181.Ethical Perspectives 10 (2003)3-4, p. 234
Robertson, J. Children of Choice: Freedom and the New Reproductive Technologies. Princeton: Princeton University Press,
Sapir, G. "Religion and State: A Fresh Theoretical Start." Notre Dame Law Review 75 (1999): 579.Schmidt, V.H. "Selection of Recipients for Donor Organs in Transplant Medicine." Journal of Medicine and Philosophy
23 (1998): 50-74.
Steinbock, B. "Reproductive Rights and Responsibilities." Hastings Center Report 24/3 (1994): 15-16.Tännsjö, T. "Who Are the Beneficiaries?" Bioethics 6 (1992): 288-296.Tännsjö, T. "Compulsory Sterilization in Sweden." Bioethics 12 (1998): 236-249Tobin, P. Motherhood Optional: A Psychological Journey. Northvale, N.J.: Jason Aronson, 1998.Warren, M.A. "IVF and Women's Interests: An Analysis of Feminist Concerns." Bioethics 2 (1988): 33-57.Williams, L.S. "No Relief Until the End: The Physical and Emotional Costs of In Vitro Fertilization" In The Future ofHuman Reproduction. Edited by Christine Overall. Toronto: Women's Press, 1989,
Young, T. "Overconsumption and Procreation: Are they Morally equivalent?" Journal of Applied Philosophy 18 (2001):
Ethical Perspectives 10 (2003)3-4, p. 235